GULABCHAND JAIN Vs. JHAURI MAL

JUDGEMENT

(1.) This is an application for condonation of the delay in filing this application for restoration of First Appeal No. 370 of 1960. The appeal was dismissed on account of failure of the petitioner appellant Gulabrhand Jain to furnish the security required under Order 41, Rule 10, Code of Civil Procedure. The appeal stood dismissed on the 16th October, 1963. The present application for restoration was filed on the 2nd of March 1964, it is accompanied by a petition under Section 5 of the Limitation Act for condonation of the delay in filing the application for restoration of the appeal. Certain facts have been stated in the application making out sufficient cause for not filing the application for restoration within a period of 30 days from the date of dismissal of the appeal.

(2.) In course of argument, however, our attention has been attracted to the provision of Section 30 of the new Limitation Act of 1963 which came into force on the 1st of January, 1964. If Clause (b) of Section 30 of the new Limitation Act is held to be applicable in the context of the present case, then it will foe wholly unnecessary for us to consider whether there is any substance in the allegations contained in the petition for condonation of the delay which is opposed by the learned Counsel for the opposite party as being without any merit. Clause (b) of Section 30. so far as it is relevant runs thus:--

(3.) Mr. H.L. Agrawal appearing for the opposite party has contended that the decision of this court in Mr. Minnc Lal's case, AIR 1949 Pat 112 (referred to above) is not applicable inasmuch as, it was & case of dismissal of an appeal on account of failure to comply with an order passed by the court in respect of the printing cost which matter is governed by the Rules of the High Court. That may be so, but the ratio of the decision seems to be somewhat wider, laying down that the mere restoration of an appeal does not stand on the same footing as an application by a party to restore the appeal. It is however, unnecessary for us at this stage to consider this matter as well more elaborately, because the decision of the Madras High Court holding that an application for restoration of an appeal dismissed for default to furnish security under Order 41, Rule 10 Code of Civil Procedure, is also subject matter of the Limitation Act. On examination, it appears not to have taken into account the difference in the language of Order 41 Rule 19 and Order 41, Rule 10. Code of Civil Procedure. The former speaks of dismissal of an appeal whereas the latter speaks of rejection of the appeal which, obviously, would imply the rejection of the memorandum of appeal, which has nol the same effect as dismissal of the appeal, as is clear from the various provisions of the Code of Civil Procedure itself to which a detailed reference again is nol necessary. The position is well settled. It seems to us, therefore, that Article 168 which relates to the dismissal of appeal cannot be held to be applicable to the case of an application for restoration of the appeal which has been re jected under Order 41, Rule 10, Code of Civil Procedure, on account of default on the parl of the appellant.